The 1999 Second Protocol to the 1954 Hague Convention: its added value and cost

3. 『The 1999 Second Protocol to the 1954 HaguenConvention for the Protection of Cultural Property in the Event of ArmednConflict adds littlenof substance to the existing conventional and customary internationalnhumanitarian law, at the cost of making the legal protection of tangiblencultural heritage in wartime seem far more complicated than it is.』 Discuss.

nn

The 1999 Second Protocol (hereinaftern『the Protocol』) is designed to as a supplement to the 1954 Convention (Art. 2)nbuilding upon existing rules of customary international law (forth recital) innmost part. However, this essay is going to argue that despite it adds littlensubstance in some aspects, it indeed adds some further value in other aspectsnand its cost could be mitigated.

Innrelation to rules governing targeting cultural property during armed conflict,nto a large extent the 1999 first protocol was designed to bring up to date in textual terms what was already what 1954 isninterpreted in light of customary international law (this purpose is demonstrated in thenpreamble of 2HP 『rules governing the protection of CP in the event of armednconflict should reflect developments in international law』 ). In other words, when we talk about the obligation not to target culturalnproperty unless it became military objective, clarification of militarynnecessity waiver (Art. 6(a)), the notion of military objective(Art. 1(f)), or takingnprecautionary measures and prohibition of disproportionate attacks (Art. 7), thosenare what CIL already said. To that extent, it does notnadd a lot. Itnmay be argued that proceduralnobligationsnare different. For example, thendecision to invoke imperative military necessity shall only be taken by annofficer commanding a force of certain size (Art. 6(c)) and it requires to givenadvance warning (Art. 6(d)) But such rules maynprovide little protection.[1]

Whilensome articles in the Protocol just reflect development of customary law innprotection of CP in armed conflicts, the Protocol may add substance in othernaspects.

nn

ThenProtocol imposes obligation to take some peace time measures, such asninventorization, planning of emergency measures, preparation for removal of CPnor in situ protection, designation of competent authorities for protection ofnCP (Art. 5) remove CP from the vicinity of military objectives and avoidnlocating military objectives near cultural property. (Art. 8). However, it thenmeasures are merely indicative not mandatory, depending on the parties tondetermine what constitute 『as appropriate』,[2] thusnit is questionable how much substance it added.

Art.n9 provides additional obligation on occupying power in relation to prohibitionnof illicit export or transfer of ownership (Art. 9(1)(a)) and prohibition of certainnarchaeological excavation, or certain alternation to, or change of use of CPn(Art. 9(1)(b)and(c)) .

In addition, thenenhanced protection regime indeed adds some extra protection on the culturalnproperty, especially from the perspective of the holder of the property. See Enhanced Protection Regime v. Special Protection Regime in 1954 Hague Convention and its Protocols

『As mentioned by Jean-MarienHenckaerts, enhanced protection regime provides no lower or higher level ofnprotection. The basic protection is the same for cultural property underngeneral and enhanced protection: the cultural property cannot be attacked orndestroyed.[3]nIndeed, there is no much difference between cultural property under enhancednprotection and general protection from the perspective of the attacker. Fornexample, under general rules, the cultural property may lose its protectionnwhen due to its nature, location, purpose or use, it becomes a militarynobjective; [4]nwhile under the special rule for cultural property under enhanced protection,nthe loss of protection may only be owing to its 「use」.[5]nThe protection under the special rule and general rule may apparently lookndifferent, but as a matter of fact, even for cultural property under generalnprotection, it is principally through its 「use」nthat cultural property might realistically be expected to make an effectivencontribution to military action.[6]nThere may be some differences with regards to prohibition of collateral damage.nUnder general rules, it is prohibited to launch an attack that may be expectednto cause disproportionate collateral damage to cultural property.

[7]

Forncultural property under enhanced protection, the proportionality calculus goesneven more than that under general protection. Considering that culturalnheritage under enhanced protection by definition is 「cultural heritage of thengreatest importance for humanity」, the concrete and direct overall militarynadvantage anticipated that can justify the destruction of cultural property shouldnbe far more considerable than that can justify destruction of cultural propertynunder general protection. There are also some minor differences in thenlevel of command who may order the attack, give the warning and reasonablentime. For general protection, the level of command should be an officer commanding a force equivalentnin size to at least a battalion; while for enhanced protection, itnshould be the highest operational level of command.nBut these differences do not change the basic loss of protection.[8]nIn the final analysis, from the perspective of the obligation of the attacker,nthe level of protection is not much different between enhanced and generalnprotection. 『

nn

In Chapter 4, the Protocol imposes obligation on criminal sanctions. That is a big advantage. Although Art. 28 of the 1954 Hague Convention addresses criminal matters,nit is considered to general and therefore ineffective.[9] Chaptern4 of the Protocol, however, adds specific obligations. It provides for a listnof 『serious violations』 of the protocol (Art. 15) and requires State Parties tonmakes the acts set out therein criminal offences (Art. 15) and sets out thenjurisdictional competencies for each states (Art. 16) and imposes thenobligation to prosecute or extradite (Art. 17 and Art. 18) as well as mutual assistancenon criminal matters(Art. 19)

nn

Also,nthe scope of Protocol extends to both international armed conflict andnnon-international armed conflict (Art. 3 and Art. 22) It may be argued this isnnot something new as it just draws on customary rules in this regard, eg. the definitionnof NIAC in 1977 Additional Protocol II. However, considering the limited rulesnapplicable in NIAC, the Protocol indeed introduce further rules applicable innIAC into NIAC, eg. principle of proportionality.

As a result, sure there are aspects wherenno a bit deal added, but in other aspects there are advancement.

As forncost, it may be said the Protocol is notnworthy given we already have CIL, but considering it added some further rules not existing in 1954 andnCIL, such efforts would be worthwhile. It may also be argued that the protocol addndifficulties in application, but the relevant rules cannbe boiled down very briefly, like the military handbooks the UNESCO justnreleased. So not hard to apply.

To conclude,nthe statement in question is right in the sense that many of the rules in thenProtocol just codify existing rules of customary international law while addnnothing new. However, it is overstatement to say that the Protocol add littlensubstance and add more cost as some other rules, such as criminal matters,nobligation on occupying power to prohibit illicit export and transfer of ownershipnas well as further rules in NIAC, indeed bring added value and the cost may notnbe that high.

[1] Forrest(2010),np. 115.

[2] Forrest(2010),np. 112.

[3] Jean-Marie Henckaerts (nn5) 34.

nn

[4] 1999 Second Protocol,nart 1(f).

[5] 1999 Second Protocol,nart 13(1)(b).

nn

[6] O』Keefe (n 1) para.n88.

[7] Ibid, parasn112-4.

[8] Jean-Marie Henckaerts (nn5) 34.

[9] Forrestn(2010), p. 123.